Los Angerles Building & Const. Trades Council, Etc.

National Labor Relations Board - Board DecisionsJun 24, 1965

153 N.L.R.B. 383 (N.L.R.B. 1965)

LOS ANGELES BUILDING & CONST. TRADES COUNCIL, ETC. 383 in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization , as a condition of employment as authorized in Sec- tion 8 ( a) (3) of the Act. All our employees are free to become or remain , or refrain from becoming or remaining , members of the above-named or any other labor organizations. HAROLD GORLICK and MORRIS GORLICK , Co-Partners, d/b/a THRIFTY SUPPLY COMPANY; THRIFTY SUPPLY CO. OF TACOMA, INC., Employees. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE -We will notify the above-named employees if serving in the Armed Forces of the United States of their right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 500 Union Street, 327 Logan Building, Seattle, Washington, Telephone No. 682-4553, if they have any questions concerning this notice or compliance with its provisions. Los Angeles Building & Construction Trades Council ; and Local No. 844, United Brotherhood of Carpenters & Joiners of Amer- ica and Quality Builders , Inc. Case No. 21-CC-715. June 24, 1965 DECISION AND ORDER Upon a charge filed on February 28, 1964, by Quality Builders, Inc., against Los Angeles Building & Construction Trades Council and Local No. 844, United Brotherhood of Carpenters & Joiners of Amer- ica, both herein referred to as the Respondents, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint and notice of hearing. This complaint, as amended, alleged that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8(b) (4) (i), (ii) (A) and (B) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and the complaint and notice of hearing were duly served upon Respondents. With respect to the unfair labor practices, the complaint alleged, in substance, that Respondents unlawfully picketed a construction project at which the Charging Party was the general contractor and, further, that the Respondents instructed, directed, and appealed to individuals employed by subcontractors and other persons to cease work at the construction project, all of which resulted in a refusal by 153 NLRB No. 38. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such individuals and others to perform services for their employers at the construction project. The complaint alleges that the Respondents' objectives in engaging in such conduct were : (1) to force or require Quality Builders, Inc., to enter into an agreement containing clauses prohibited by Section 8(e) of the Act; (2) to force or require Alert Plumbing and J. & L. Construction, subcontractors at the Quality construction jobsite, and other persons, to cease doing business with Quality; and (3) to force or require Quality to cease doing business with L. & G. Electric Contractors, a subcontractor at Quality's con- struction jobsite, and other persons. In their answers, the Respondents denied the commission of the unfair labor practices alleged in the complaint. On July 16, 1964, a hearing was held in this matter before Trial Examiner Howard Myers. At the hearing the parties evidenced an intent to waive a decision by the Trial Examiner and to move to trans- fer these proceedings directly to the Board. Thereafter, a motion to this effect was jointly made to the Board, waiving therein any findings of fact and conclusions of law by the Trial Examiner, as well as the issuance of a Trial Examiner's Decision, and submitting the case directly to the Board for findings of fact, conclusions of law, and order dispositive of the issues raised herein and pursuant to the provisions of the Act. On August 4,1964, at the direction of the Board, an order was issued granting this motion and transferring the case to the Board. Although a date was set therein for the filing of briefs by the parties, in accord- ance with the parties' request, no briefs have been filed.' Pursuant to Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. Upon the basis of the parties' motion as granted by the Board and the entire record in this case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES The parties hereto stipulated at the hearing, and failed to deny the allegation of the amended complaint which stated, that L. & G. Elec- tric Contractors is engaged in the building and construction industry as an electrical contractor and that during the year 1963 L. & G. pur- chased goods valued in excess of $50,000 from suppliers located within the State of California, but who purchased and received the said goods 1 Subsequent to the date set for filing the briefs , the General Counsel submitted a memo of law of which the Board has taken due note. LOS ANGELES BUILDING & CONST. TRADES COUNCIL, ETC. 385 directly from firms located outside of the State of California . We find that L. & G. is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act 2 Quality Builders , Inc., is engaged at Los Angeles, California , as a general contractor in the building and con- struction industry . Alert Plumbing and J. & L. Construction perform plumbing and framing work respectively in that area in the same industry. We find that all of the above companies , including L. & G., are engaged in an "industry affecting commerce" within the meaning of Section 8 (b) (4) of the Act,' that the Board's jurisdictional standards are met, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. H. THE LABOR ORGANIZATIONS INVOLVED Los Angeles Building & Construction Trades Council and Local No. 844, United Brotherhood of Carpenters & Joiners of America are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES The following facts were stipulated to at the hearing by the parties : Quality Builders, Inc., is a general contractor in the building and construction industry operating in Los Angeles, California. At all times material herein, Quality has been engaged as a general contractor in the construction of one 43-unit and two 42-unit dwellings on Devon- shire Street in the city of Los Angeles. Quality subcontracted all of the construction work at this project to various subcontractors, including, among others, Alert Plumbing (plumbing work), J. & L. Construction (framing work), and C. & H. Electric (electrical work). The latter assigned its subcontract to L. & G. Electric Contractors on or about February 26, 1964. At all times material herein, neither Quality nor L. & G. has been a signatory to a collective-bargaining agreement with either of the Respondents. The Respondents, at all timeb material herein, have demanded that Quality enter into an agreement known as the short a In finding L. & G. to be engaged in commerce , we do not rely upon subparagraphs 2(d) and 2 ( e) of the complaint , as amended , which attempt to establish that L. & G. is engaged in commerce by virtue of its membership in a trade association , the aggregate of the business of the members of which is alleged to satisfy the Board's jurisdictional standards . Respondent Los Angeles Building & Construction Trades Council 's motion to strike the said subparagraphs is denied . Inasmuch as no further answer to these sub- paragraphs is necessary , this Respondent ' s request to be permitted to answer further should the Board deny its motion is also denied. 3 See N.L.R.B. v. Denver Building and Construction Trades Council ( Gould & Preisner), 341 U.S. 67i2 and Sheet Metal Workers International Association , Local Union No. 299 ( S. M. Kisner and Sons ), 131 NLRB 1196. 796-027-66-vol. 153-26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form collective-bargaining agreement .4 Subsequent to the making of such demands, on or about February 26, 1964, the Respondents com- menced picketing at the construction project. In addition, on or about February 26, 1964, and thereafter, the Respondents instructed, directed, and appealed to individuals employed by Alert and by J. & L. to cease work at the construction project. As a consequence of the acts and conduct of the Respondents, as described above, individuals employed by Alert, J. & L., and other sub- contractors as well as suppliers refused to perform services for their employers at the construction project. 4This agreement contains the following provisions material hereto. IV. The Employer, Developer and/or Owner-Builder agrees that he shall contract or subcontract work as provided in Article I only to a person, firm, partnership or corporation that is party to an executed, current agreement with the appropriate union having work and territorial jurisdiction, affiliated with the Council in which area the work is performed V. The Employer, Developer and/or Owner-Builder agrees that in the event he contracts or subcontracts any work so provided in Article I there shall be contained in his contract with the subcontractor a provision that the subcontractor shall be responsible for the payment of all wages and fringe benefits provided under the agree- ment with the appropriate Union affiliated with the Council. In the event that any subcontractor fails to pay the wages or fringe benefits provided under the agreement with the appropriate Union affiliated with the Council, the Employer, Developer and/or Owner-Builder shall become liable for the payment of such sums and such suns shall immediately become due and payable by the Employer, Developer and/or Owner-Builder, provided, however, he shall be notified of any such nonpayment by registered letter by the appropriate union no later than 90 days after notice of and or completion of the entire project. IX. In the event that the Employer, Developer and/or Owner-Builder violates any provision of this Agreement or fails to abide by the [National Joint Board] deter- mination as provided in Article VII or in the event that any contractor or subcon- tractor of the Employer, Developer and/or Owner-Builder fails to abide by the pro- visions of the appropriate agreement, it will not be a violation of this Agreement for the Councils to terminate this Agreement and it shall not be a violation of this Agree- ment for any employee to refuse to perform any work or enter upon the premises of such Employer, Developer and/or Owner-Builder Employees who refuse to perform any work or enter upon the premises under the circumstances shall not be subject to discharge or any other disciplinary action. The Employer, Developer and/or Owner-Builder further agrees that on all his jobs he, and all his contractors and subcontractors will abide by all local, State and Fed- eral health, safety and sanitary regulations, and in the event that there are any conditions which may be or tend to be detrimental to the employees' health, safety, morals or reputation, it is agreed that the Employee shall not be required to work under such conditions. It is further agreed that no employee shall be required to cross any picket line or enter any premises at which there is a picket line authorized or approved by the Councils, individually or collectively, or authorized by any Cen- tral Labor Body in the area covered by this Agreement. The Employer, Developer and/or Owner-Builder agrees that he will not assign or require any employee cov- ered by this Agreement to perform any work or enter premises under any of the circumstances above described. During the time of any violation of any of the pro- visions of this Agreement by the Employer, Developer and/or Owner-Builder, contractor or subcontractor, whether created by their executed, current agreements or otherwise, the affiliated Unions shall be released and relieved of any obligation to furnish workmen to any of them. LOS ANGELES BUILDING & CONST. TRADES COUNCIL, ETC. 387 Conclusions 1. As previously indicated, the complaint alleges, inter alia, that Respondents violated Section 8(b) (4) (i) and (ii) (A) by picketing the Devonshire Street project in support of their demands that Quality execute the short form agreement. In material part, Section 8 (b) (4) (A) bans a labor organization from resorting to proscribed pressures for an object of "forcing or requiring any employer ... to enter into any agreement which is pro- hibited by Section 8(e)."' The strictures of Section 8(e) are subject to a proviso, covering "agreement [s] between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction ...." In construing these sections of the Act, the Board has held that, because 8 (b) (4) (A) incorporates the 8 (e) proviso by reference, secondary hot cargo clauses, which are lawful under the construction industry proviso, may be secured by proscribed economic pressures without vio- lating Section 8(b) (4) (A).5 Thus, in cases arising in the construc- tion industry, violations of Section 8 (b) (4) (A) occur only in circum- stances where the disputed clauses both fall within the prohibitory terms of Section 8 (e) and are not exempted therefrom by the construc- tion industry proviso. Upon examination of the various provisions in Respondents' proposed agreement, we are satisfied that both condi- tions have been met in the instant case. Insofar as relevant, Respondents' agreement included the following : (1) Article IV restricts subcontracting to employers who are parties to agreements with appropriate unions; (2) article IX permits employees to engage in work stoppages if an employer fails to abide by the agreement; and (3) article IX also permits employees to refuse to cross authorized picket lines. The Board has traditionally rejected the argument that such provisions are legitimate work-preservation clauses, primary in scope, and outside the ambit of Section 8(e), hold- ing that they are secondary and within the prohibitory terms of Sec- tion 8 (e).6 Nothing in the instant record warrants a departure from G Northeastern Indiana Building and Construction Trades Council (Centlivre Village Apartments), 148 NLRB 854. 6 See Building and Construction Trades Council of San Bernardino and Riverside Coun- ties v. N.L.R.B. ( Gordon Fields ), 328 F. 2d 540 , 541 (C A.D C.) ; and Truck Drivers Union Local 413 etc. v. N.L.R B. (The Patton Warehouse Company ), 334 F 2d 539, 548 (C .A D C.), to the effect that union signatory clauses of the type found in article IV of the Respondents ' agreement fall within Section 8 (e). It follows therefore that the self - enforcement language in article IX establishes an 8(e) clause; see Cement Masons Local No. 97, AFL-CIO, ( Interstate Employers , Inc.), 149 NLRB 1127; Muskegon Bricklayers Union #5 etc (Greater Muskegon General Con- tractors Association ), 152 NLRB 360 ; and Amalgamated Lithographers of America, Ind (The Employing Lithographers), 130 NLRB 985, 989, enfd. as modified 309 F. 2d 31 (CA 9). See Los Angeles Building t Construction Trades Council ( Portofino Marina ), 150 NLRB 1590, and cases cited at footnote 14, to the effect that the picket line clause is also within Section 8(e) insofar as it is broad enough to apply to unlawful secondary picketing. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD established precedent in this regard, and we hold the clauses to be hot cargo agreements within the intendment of Section 8 (e) . On the basis of established Board policy, it is also clear that these provisions do not fall within the construction industry proviso to Sec- tion 8 (e). The self-enforcement provision in article IX, considered together with article IV's prohibition on subcontracting to persons who are not a party to an appropriate union contract, sanctions private economic action by employees should the signatory employer subcon- tract to a nonsignatory employer. In contemplating enforcement of the agreement by strike rather than resort to the courts, the clauses are controlled by Greater Muskegon General Contractors Association 7 where a provision, of like effect, was held to exceed the prescribed bounds of the construction industry proviso. Additionally, we find the proviso inapplicable to the picket line provision in article IX since the permissive language thereof is broad enough to apply to both sec- ondary boycotts and disputes bearing no relationship to the "contract- ing or subcontracting of the work to be done at the site," as is required by the aforesaid proviso.8 Accordingly, and as the aforementioned clauses are secondary and not exempt from Section 8 (e) by the first proviso thereof, we find that Respondents, by picketing to force or require Quality to execute the short form agreement , engaged in conduct violative of Section 8(b) (4) (i) and (ii) (A) of the Act.9 2. During the course of the picketing herein, the Respondents instructed, directed, and appealed to employees of two subcontractors to cease working at the construction project. This activity was suc- cessful in that these and other employees refused to perform services for their employers at the construction project. It is apparent that the Respondents also engaged in this conduct with an object of forcing or requiring Alert, J. & L., and others to cease doing business with Quality because the latter was not signatory to an agreement with the Respondents. Further, it is evident that an additional object of the Respondents' conduct was to force or require Quality to cease doing business with L. & G. because the latter was not signatory to such an agreement. The Respondents have, therefore, and we so find, also engaged in, and induced and encouraged individuals employed by persons engaged in an industry affecting commerce to engage in, a strike or concerted refusal to handle materials or to perform services for an unlawful P Muskegon Bricklayers Union #5, supra. 8 See Interstate Employers , supra, and Portofino Marina, supra. 9 For the reasons stated in his dissenting opinion in Muskegon Bricklayers Union #5, supra, where a similar clause was involved, Member Fanning would not find that the "work standards" clause in the instant case is unlawful, or that the Respondents ' picket- ing to obtain agreement to such clause violated Section 8 ( b) (4) (1) and (li) (A). LOS ANGELES BUILDING & CONST. TRADES COUNCIL , ETC. 389 object and have threatened , coerced, or restrained persons engaged in an industry affecting commerce for an unlawful object, in violation of Section 8 ( b) (4) (i) and ( ii) (B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondents set forth above have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Board makes the following: CONCLUSIONS OF LAW 1. Respondents are labor organizations within the meaning of the Act. 2. L. & G. Electric Contractors is engaged in commerce within the meaning of Section 2(6) and (7) of the Act; Quality Builders, Inc., Alert Plumbing, and J. & L. Construction are engaged in the building and construction industry. All of the foregoing companies are engaged in an industry affecting commerce within the meaning of Section 8 (b) (4) of the Act. 3. By picketing at the construction jobsite of Quality Builders, Inc., and by instructing, directing, and appealing to individuals employed by Alert Plumbing and J. & L. construction to cease work at such jobsite, all with an object of forcing Quality to enter into an agreement which contained a clause unlawful under Section 8 (e), Respondents have engaged in unfair labor practices within the mean- ing of Section 8(b) (4) (i) and (ii) (A) of the Act. 4. By picketing at the construction jobsite of Quality Builders, Inc., and instructing, directing, and appealing to individuals employed by Alert Plumbing and by J. & L. Construction to cease work at the con- struction project, with the objects of forcing or requiring Alert and J. & L. to cease doing business with Quality and forcing or requiring Quality to cease doing business with L. & G., Respondents have engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents , Los Angeles Building & Construction Trades Council and Local No. 844, United Brotherhood of Carpenters & Joiners of America, and their respective officers, agents, and representatives, shall : 1. Cease and desist from : (a) Engaging in, or inducing or encouraging any individual employed by Alert Plumbing, J. & L. Construction, or any other employer, to engage in, a strike or refusal in the course of such indi- vidual's employment to use or handle any materials or to perform any services, or threatening, coercing, or restraining Quality Builders, Inc., Alert Plumbing, J. & L. Construction, or any other employer, by a strike or picketing, where in either case an object thereof is to force or require Quality Builders, Inc., to enter into an agreement which is prohibited by Section 8(e) of the Act. (b) Engaging in, or inducing or encouraging any individual employed by Alert Plumbing, J. & L. Construction, or any other employer, to engage in, a strike or refusal in the course of such indi- vidual's employment to use or handle any materials or to perform any service, or threatening, coercing, or restraining Alert Plumbing, J. & L. Construction, or any other employer, by a strike or picketing, where in either case an object thereof is to force or require said employers to cease doing business with Quality Builders, Inc., or any other person, or to force or require Quality Builders, Inc., to cease doing business with L. & G. Electric Contractors, or any other person. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at the separate business offices and meeting halls of each of the aforesaid Respondents copies of the attached notice marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for Region 21, shall, after being duly signed by authorized representatives of both Respondents, be posted by both Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to ensure that the notices are not altered, defaced, or cov- ered by any other material. 10 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals , Enforcing an Order." LOS ANGELES BUILDING & CONST. TRADES COUNCIL, ETC. 391 (b) Sign and mail copies of said notice to the Regional Director for Region 21 for posting by Quality Builders, Inc., L. & G. Electric Con- tractors, Alert Plumbing, J. & L. Construction, and all of Quality Builders, Inc.'s current subcontractors and suppliers, said companies willing, at all locations where notices to their employees are customar- ily posted. (c) Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. APPENDIX To ALL OUR MEMBERS AND ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT engage in, or induce or encourage any individual employed by Alert Plumbing, J. & L. Construction, or any other employer, to engage in, a strike or refusal in the course of such individual's employment to use or handle any materials or to per- form any services, or threaten, coerce, or restrain Quality Build- ers, Inc., Alert Plumbing, J. & L. Construction, or any other employer, by a strike or picketing, where in either case an object thereof is to force or require Quality Builders, Inc., to enter into an agreement which is prohibited by Section 8(e) of the Act. WE WILL NOT engage in, or induce or encourage any individual employed by Alert Plumbing, J. & L. Construction, or any other employer, to engage in, a strike or refusal in the course of such individual's employment to use or handle any materials or to per- form any services, or threaten, coerce, or restrain Alert Plumbing, J. & L. Construction, or any other employer, by a strike or picket- ing, where in either case an object thereof is to force or require said employers to cease doing business with Quality Builders, Inc., or any other person, or to force or require Quality Builders, Inc., to cease doing business with L. & G. Electric Contractors, or ally other person. Los ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) LOCAL No. 844, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Members or employees may communicate directly with the Board's Regional Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California, Telephone No. 688-5229, if they have any questions concerning this notice or compliance with its provisions. Local Joint Executive Board, and Cooks and Assistants Local No. 33 , Waiters Local No. 239, Waitresses Local No. 240 of the Hotel and Restaurant Employees and Bartenders Union, AFL- CIO [Louis J . Ferrera, d/b/a Little Luigi's Italian Foods] and Michael J. Starosky . Case No. 19-CB-946. June 24, 1965 DECISION AND ORDER On June 10, 1964, Trial Examiner Irving Rogosin issued his Deci- sion in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He further found that the Respondents had not engaged in other unfair labor practices alleged in the complaint. Thereafter, the Respondents and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Trial Exam- iner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the additions noted below. We find merit in the General Counsel's exception to the failure of the Trial Examiner to find that the Respondents' threat to picket and the picketing of Louis J. Ferrera, d/b/a Little Luigi's Italian Foods, herein called Luigi's, constituted violations of Section 8 (b) (2) of the Act. The Trial Examiner found that the Respondents, after threats to picket, picketed Luigi's on or about June 25 and 26,1963. The credited testimony reveals that as a result of the picketing by Respondents, 153 NLRB No. 42.